Category: Legalia

Punching down

More than 20 states have incorporated sexual orientation into their anti-discrimination statutes. As Charlotte Allen documents in “Punching Down,” this has empowered well-educated and well-paid gays to punish less educated, less wealthy neighbors who dare to refuse to bake a cake or make a bouquet for their weddings. At present, Colorado baker Jack Phillips has been targeted by yet another lawsuit, this time brought by a transgender Denver lawyer. The situation is exactly the opposite of the Montgomery bus boycott.

In certain circumstances it may be unjust to deny employment to a gay person. But this kind of discrimination, if it happens in our society (as surely it does), is not “invidious.” By any measure, discrimination against gays is uncommon. I am willing to bet a substantial sum that a fat person is far more likely to suffer employment discrimination than someone who engages in sodomy in the privacy of his home.

GLAAD set a goal: It wanted 10 percent of primetime TV characters to be LGBT. The organization recently reported that this goal was achieved. The new goal is 20 percent. Four percent of the population identifies as gay. In what universe does a group capable of compelling fivefold overrepresentation in the media require anti-discrimination protection?

R.R. Reno

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Sailing on the sea of this present life, I think of the ocean of my many offenses; and not having a pilot for my thoughts, I call to Thee with the cry of Peter, save me, O Christ! Save me, O God! For thou art the lover of mankind.

(From A Psalter for Prayer)

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Tragedy and Triumph

Beto O’Rourke says, in the special Thursday Democrat Pander-O-Thon for LGBT votes, that churches, colleges and charities should lose their tax-exempt status if they oppose same-sex marriage.

That’s the succinct version. But I wouldn’t blog if that’s all I had to say.

Liberals will say, “Don’t worry about it. Beto is scraping the bottom of the polls. What he says doesn’t really matter.”…

This conservative said that, too, but

… Huh. Don’t you believe it. If this belief isn’t already held by all the Democratic candidates now, it will be. As Brandon McGinley says, there really is no principled reason to resist it, given what the Democrats already believe about the sanctity of homosexuality and transgenderism. Haven’t we all lived long enough now to recognize that the Law of Merited Impossibility — “It will never happen, and when it does, you bigots will deserve it” — is as irrefutable as the Second Law of Thermodynamics?

…

Even at this late date, we hear from many liberals that orthodox Christians are “obsessed” with homosexuality. They can’t grasp why, aside from bigotry, that we are so concerned about the issue. It’s largely because the march of LGBT ideology to conquer our culture tramples over the rights of orthodox/traditionalist religious people, and indeed of anybody who objects to whatever claim LGBTs make.

…

What Beto O’Rourke said last night is a perfect example of why many orthodox Christians who despise Donald Trump will vote for him anyway. The survival of our institutions depends on keeping the Democrats out of the White House (and Congress) for as long as we can ….

Rod Dreher (emphasis added).

Insofar as Dreher is describing why many Christians will hold their noses and vote for Trump, he is surely right.

Insofar as he is saying that the survival of our Christian institutions hinges on Donald Trump’s reelection, he is selling God short.

But this is admittedly a situation with high stakes, where the horrible terribleness of Donald Trump has emboldened the Democrats to veer sharply to their left and to promise their base the heads of orthodox Christians on a platter.

Trust in God comes hard in these circumstances, and the trusting ones need to abandon any illusion that Romans 8:28 means only good things happen to those who love and are called by God.

I’m still strongly inclined never to vote for Trump, come whatever may.

It’s not just “all things considered and on balance.” It’s a question of my ingrained, pre-theoretical ethical orientation. I just couldn’t vote for Richard Nixon, in my first Presidential election, once I’d concluded he was a crook. 47 years later, with a bit more ethical theory under my belt and a lot less starry eyes in my residual optimism, I still cannot begin to articulate a convincing deontological or virtue ethics argument for voting for Trump, and I reject Dreher’s implicit consequentialism.

I’d encourage any Christian readers inclined to vote for Trump to grapple with articulating at ethical case for voting for Trump, aware that consequentialism squares pretty badly with Christianity.

On the other hand, my scriptures (the Christian scriptures before the Reformers bowdlerized them — see this, for instance) do include this bit of consequentialism:

A large force of soldiers pursued them, caught up with them, set up camp opposite them, and prepared to attack them on the Sabbath.

There is still time, they shouted out to the Jews. Come out and obey the king’s command, and we will spare your lives.

We will not come out, they answered. We will not obey the king’s command, and we will not profane the Sabbath.

The soldiers attacked them immediately, but the Jews did nothing to resist; they did not even throw stones or block the entrances to the caves where they were hiding. They said,

We will all die with a clear conscience. Let heaven and earth bear witness that you are slaughtering us unjustly.

So the enemy attacked them on the Sabbath and killed the men, their wives, their children, and their livestock. A thousand people died.

When Mattathias and his friends heard the news about this, they were greatly saddened and said to one another,

If all of us do as these other Jews have done and refuse to fight the Gentiles to defend our lives and our religion, we will soon be wiped off the face of the earth.

On that day they decided that if anyone attacked them on the Sabbath, they would defend themselves, so that they would not all die as other Jews had died in the caves.

(Emphasis added)

Make of that passage what you will. It does seem a pretty consequentialist, and Judas Maccabeus remains a mythical hero.

Maybe the polls in your state will say, in 13 months, that your state’s a toss-up, so that choosing between evils feels compulsory.

What I make of the passage from I Macabees is that I at least must be gentle with fellow-Christians who vote for Trump or (because of his horrible terribleness) his Democrat opponent — and that I should hope and pray that they will recognize such a vote as at best a tragic, not triumphant.

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The Lord is King, be the peoples never so impatient; He that sitteth upon the Cherubim, be the earth never so unquiet.

(Psalm 98:1, Adapted from the Miles Coverdale Translation, from A Psalter for Prayer)

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Single standards

I commented just a bit earlier about the good news for religious freedom out of Michigan, courtesy of Masterpiece Cake Shop.

But now, I must quibble about my second encounter of the story:

For those who don’t recall, the Supreme Court ruled for Phillips [proprietor of Masterpiece Cakes] in large part because a commissioner of the Colorado Civil Rights Commission called Phillips’s claim that he enjoyed a religious-freedom right not to be forced to design a custom cake for a gay wedding a “despicable piece of rhetoric.” The commissioner also denigrated religious-liberty arguments as being used to justify slavery and the Holocaust.

While all agreed that it would have been preferable had the court simply ruled that creative professionals could not be required to produce art that conflicted with their sincerely held beliefs, the question was whether Justice Anthony Kennedy’s strong condemnation of anti-religious bigotry would resonate beyond the specific facts of the case.

David A. French (italics added)

David French is a very good lawyer and a steadfast friend of both free speech and the free exercise of religion, but he blew this one (I suspect a bit of cerebral flatulence; I doubt that he would disagree with me if he caught wind of my existence).

I, too, know something about the law in this area and I do not agree that it would have been preferable to carve out special immunity for creative professionals with sincerely held beliefs. I wanted the court to rule “that creative professionals could not be required to produce art.” Period. Full stop.

Carving out a exemption only for sincere religious belief is a retreat from the sound principle of artistic freedom and would, I believe, perversely feed into the designer narrative that “religious freedom is just an excuse for bigotry.”

Yes: because nobody should be able to coerce an artist to produce something he doesn’t want to produce for whatever reason, spoken or unspoken, I want a creative professional to be able to say to me “I’m an ardent atheist, hater of all things and all peoples religious, and I won’t create art for Christians. If you don’t like it, put it where the sun don’t shine.”

He’d be smarter to “just say no, thank you,” but polite bigots don’t deserve special exemption from legal coercion.

I do not mean to imply that bigoted utterances are completely harmless. Sticks and stones may break my bones, but words can bruise feelings. But as a general rule I think the harm of disrespecting someone, even openly, is lesser than the harm of coercing artistic expression — and we need to make laws for general cases, not rare exceptions. Coerced expression, after all, profoundly disrespects the artist.

A fortiori, I’d support the atheist if, for instance, he was a florist and we wanted him to deliver flowers to our Church early every Sunday morning, designed to complement our liturgical calendar or the sermon themes the pastor phoned in. Or a baker, and we wanted a “Jesus Loves Me” inscribed sheet cake.

I wouldn’t even call him a bigot for that: How is an artist supposed to artistically express something he thinks is at best hocus pocus, likelier an opiate of the people?

No doubt some can do it (I suspect impiety in some composers of great 20th Century English language religious choral works, the art form I know best, for instance), and I’ll leave it to them to deal with qualms of conscience. But I don’t expect, let alone want the law to compel, artists to prostitute their art.

This hypothetical atheist florist is very, very close to a reverse mirror-image of Jack Phillips, Barronelle Stutzman and other artisans who have been punished (in Stutzman’s case, obsessively pursued by an evil elected official) for refusing orders to adorn same-sex weddings — the lightning-rod du jour.

Phillips and Stutzman both served gays gladly, but drew a line at celebrating by tangible proxy a “wedding” they considered something on the lines of wicked, or impious mummery.

For what it’s worth, I doubt that the law would punish the atheist florist for declining weekly expressive bouquets to a church. There has been a double-standard that could well be dubbed “the LGBT distortion factor,” to go along with the “abortion distortion factor” (normal legal rules suspended in the presence of abortion) and the lesser know “creationist distortion factor” (any science teacher who both attends church and exposes evolution to critical examination loses and gets branded with a scarlet “C”).

I don’t like legal double-standards, which is precisely why I don’t like David French’s presumably inadvertent expression of what Jack Phillips’ partisans were hoping for in Masterpiece Cake Shop. I don’t doubt that there are some protections that free exercise of religion affords where free speech falls short, but compelled artistic expression surely isn’t one of them.

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I sought to understand, but it was too hard for me, until I went into the sanctuary of God; then understood I their end.

(Psalm 72:15-17, Adapted from the Miles Coverdale Translation, from A Psalter for Prayer)

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You can read most of my more impromptu stuff at here. It should work in your RSS aggregator, like Feedly, should you want to make a habit of it.

I highly recommend blot.im as a crazy-easy alternative to Twitter (if you’re just looking to get your stuff “out there” and not pick fights).

Masterful Resonance

Good news for religious freedom, out of Michigan and courtesy of the Supreme Court’s ruling in Masterpiece Cake Shop.

For those who don’t recall, the Supreme Court ruled for Phillips [proprietor of Masterpiece Cakes] in large part because a commissioner of the Colorado Civil Rights Commission called Phillips’s claim that he enjoyed a religious-freedom right not to be forced to design a custom cake for a gay wedding a “despicable piece of rhetoric.” The commissioner also denigrated religious-liberty arguments as being used to justify slavery and the Holocaust.

… [T]he question was whether Justice Anthony Kennedy’s strong condemnation of anti-religious bigotry would resonate beyond the specific facts of the case.

David A. French

The answer is “yes, it would resonate more widely,” and I’m starting to see how this may play out:

In 2015 the state of Michigan passed a statute specifically designed to protect the religious liberty of private, religious adoption agencies. In 2018, however, Dana Nessel, a Democratic attorney general, took office. During her campaign, she declared that she would not defend the 2015 law in court, stating that its “only purpose” was “discriminatory animus.” She also described proponents of the law as “hate-mongers,” and the court noted that she believed proponents of the law “disliked gay people more than they cared about the constitution.”

Then, in 2019, the attorney general reached a legal settlement in pending litigation with the ACLU that essentially gutted the Michigan law, implementing a definitive requirement that religious agencies provide recommendations and endorsement to same-sex couples and banning referrals. The plaintiffs sued, seeking to enjoin the relevant terms of the settlement, and yesterday Judge Robert Jonker (a Bush appointee) granted their motion for a preliminary injunction.

His reasoning was simple. There was ample evidence from the record that the state of Michigan reversed its policy protecting religious freedom because it was motivated by hostility to the plaintiffs’ faith. Because Michigan’s targeted St. Vincent’s faith, its 2019 settlement agreement couldn’t be truly considered a “neutral” law of “general applicability” that would grant the state a high degree of deference in enforcement.

(French)

Kudos to Becket (which I’ve been calling “Becket Fund for Religious Liberty,” perhaps erroneously or anachronistically), which handled this important case. I like to think a few of my dollars went into it.

This is a gratifying outcome that avoids the deeper constitutional issue of silently excluding an entity from a program because of its religious beliefs.

Attorney General Nessel herself is now unmasked as a bigot who misunderstands or contemns the law — or to paraphrase her, “dislikes conservative religious people more than she cares about the constitution.” May she be suitably chastened — repentant even.

But I’m taking no wagers on that.

What’s notable is that Nessel felt free to utter those sentiments in public, and as part of a campaign promise. She apparently thought shaming observant Catholics (the Reformed Protestants of Bethany Christian Services, too) was an electoral plus for her, and it obviously didn’t wound her fatally.

Maybe her GOP opponent was terribly odious, but I fear it’s more a matter of not living in our parents’ civilly-religious America any longer.

Now, though, Nessel and her fellow bigots need to stifle the legally counter-productive expression of their bigotry.

So how do they get the electoral lift without the legal let-down? Welcome to the era of anti-religious campaign dog-whistles.

On that, I will take (modest) wagers. Instead of Willie Horton ads, maybe Jerry Falwell, Jr. or Pat Robertson ads?

* * * * *

I sought to understand, but it was too hard for me, until I went into the sanctuary of God; then understood I their end.

(Psalm 72:15-17, Adapted from the Miles Coverdale Translation, from A Psalter for Prayer)

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Trade-offs of pluralism

Sohrab Ahmari and David French finally faced off live at Catholic University of America Thursday evening, moderated by Ross Douthat.

In debating terms, it was no contest: French cleaned up. In fairness to Ahmari, his wife had a child on Wednesday, so he had things on his mind more important than a mere livestreamed national debate of sorts.

But again and again, French, in good Evangelical style, spoke of the freedom to preach the Gospel in a content-neutral public square, to lead drag queens to Jesus, and such. That’s pretty consistent with the forward-facing values of ADF, the Evangelical-leaning public-interest law firm for or with whom he formerly worked.

It started to sound as obsessive as Ahmari’s concern over Drag Queen Story Hour. So I was glad to see Jake Meador at Mere Orthodoxy argue for something a bit thicker than mere neutrality:

For most of the … campus ministries at Nebraska, …universities were convenient social institutions because they rounded up a large number of demographically similar young people into a single place where they would have broadly identical routines, all of which made it very easy to evangelize them. Many of these groups did not think anything of taking their students away from campus regularly on retreats, heavily programming their weeks (thereby cutting into their time to give to their studies), and even sometimes suggesting that their academic work was of mostly incidental importance. The real life happened in Bible studies and when you prayed and over coffee with your discipler or disciplee. College, much like one’s eventual career, was mostly a necessary evil that simply secured material goods for you.

While watching the French-Ahmari debate last night it occurred to me that French seems to have a fairly similar vision of the nation—it’s an incidental good that is useful for advancing certain strictly material goods but it pales in significance when set next to the work of the church …

The point is not necessarily that French should endorse some species of integralism, although it is worth noting that in his handling of rights and the nature of religious doctrine as it relates to public life French is far closer to the Baptists than he is the traditional views of the reformed tradition to which he belongs. But that point aside, French could preserve many of the rights he cares about preserving while anchoring his account of the political in something more real than the pragmatic adjudication of disputes within a pluralistic society.

… That the government could be something more than a mere arbiter who threatens to hit you in the head with a brick if you don’t play nicely with your neighbor seems to be unimaginable ….

There’s much more Jake wrote, but you can go read it yourself readily enough.

By lifelong habit and inititating into the solemn mysteries of “thinking like a lawyer,” I don’t suppose I’ll ever be able to leave the camp of classical procedural liberalism, but the Ahmaris and Meadors of the world at least drive home that there are trade-offs in our pluralistic experiment.

* * * * *

[O]nce you say you are ashamed,
reading the page they hold out to you,
then such light as you have made
in your history will leave you.
They will no longer need to pursue you.
You will pursue them, begging forgiveness,
And they will not forgive you.
There is no power against them.
It is only candor that is aloof from them,
only an inward clarity, unashamed,
that they cannot reach ….

Wendell Berry, Do Not Be Ashamed

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Genocidal White Nationalist Democrats of the 80’s

We’re hearing more and more that abortion is necessary to keep blacks, immigrants, etc. from outnumbering or overrunning us.

Some like abortionist Edward Allred put it crudely, offering to set up an abortuary in Mexico for free if he could.

Some put it nicely, like Geraldine Ferraro bewailing that Welfare mothers beget welfare mothers, and that it is awfully expensive to break that cycle.

So, Nat Henthoff observes, it’s not just a matter of individual rights. Abortion is a public service responsibility to keep the population down. Especially the ghetto population. 43% of those aborted are black.

The charge of genocide is sounding less like hyperbole, even as Jesse Jackson drops it to run for President. Congressman Steny Hoyer (D, Md.) asks what about a woman impregnated by Willie Horton? An anti-abortion Republican, cornered in private by a pro-abortion colleague, is asked ‘What if your daughter were raped by some black?’

The issue is not just whether women have the right to abort at will. It’s also whether abortion is being used as a method of controlling the minority population.

Josoph Sobran, October 26, 1989

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Advantage Becket

Hair’s the thing. When Cesar Gonzales was an infant, he was seriously ill—so ill that his parents made a religious promise to God that, if their son recovered, they would keep a strand of hair on his head uncut as a sign of their faith and gratitude. Cesar got better, and he and his brother Diego both continue to keep their hair uncut and have adopted the promise to God as their own. Their Texas elementary school accommodated their faith, but that changed in seventh grade. Now, the Gonzales brothers are banned from participating in school activities like band performance, robotics team, and athletics⁠—just because of their hair. Becket has stepped in to ask the school to accommodate the Gonzales brothers’ religious exercise.

(Becket Fund email)

This is a very odd case, but I don’t question the Gonzales’ sincerity or religious motivation.

I doubt that ADF would take this case because — well, let’s just say ADF’s cases look relatively homogeneous, with few “very odd cases” — which is why I give roughly double to Becket over ADF for religious freedom support.

On the other hand, and in defense of ADF, it is the more proactive of the two, opposing (for instance) LGBT causes that are still a step or two away from religious freedom’s door. I generally can see the uncomfortable logic of these proactive positions, though it sometimes feel like “borrowing trouble” and is hard for me to defend against facile charges of phobia or mean-spiritedness; there’s just no facile counter to that.

Both are worthy of support. The breadth and consistency of Becket’s approach is why I prefer it. Your mileage may vary, especially if you’re inclined to “take the battle to ‘them’.”

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You can read most of my more impromptu stuff at here. It should work in your RSS aggregator, like Feedly, should you want to make a habit of it.

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The virtue least able to stand alone

Children reveal our instinct for fairness, the root concept in the virtue of justice. Of course, as every parent knows, that instinct is often distorted, with the desire for fairness being expressed only as “fairness for me.” Justice is a virtue with deep, visceral content. Whenever it is invoked, it should be accompanied with flags of warning. Of all the virtues, it is the least able to stand alone.

The virtue of justice, when taken alone, moves towards vice. The instinct for fairness quietly blends with the sin of envy, the desire that someone should “get what’s coming to them,” ironically named, “just deserts.” When we take pleasure in another’s misfortune, it is not the virtue of justice – it is the sin of envy. It is quite rare in our world that we find justice standing alone, pure and undefiled.

When mixed with envy, justice has the nightmare problem of no limitations. It is never satisfied with fairness – it requires punishment (inevitably justified as “fairness” or “recompense” or “justice”). The desire for justice, by itself, easily becomes an instrument of great evil … The natural appetite for justice knows no limit. The quiet virtues of temperance and prudence are the necessary antidotes to such excess. They are also much less easily acquired.

… Temperance and prudence require ascetical efforts.

Fr. Stephen Freeman, Justice, Temperance, Prudence and the Virtue of “No”.

Bonus from the same blog:

Conservatism is easily little more than the resistance to change. Receiving a tradition is a matter of a living relationship with what has gone before and recognizing its place in the present. Conservatism treats the past as important – tradition treats the past as still present.

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The GOP deathworks

What conservatives like [George] Will and I believe, and what we think Trump supporters either don’t understand or deny, is the destructive revolution in manners and mores that Donald Trump is ushering in, the enormous cultural and social blast radius of his presidency. Through his promiscuous lying and assault on demonstrable truths, his cruelty and crudity, his coarseness, bullying and dehumanization of his opponents, and his lawlessness and conspiracy-mongering—the whole corrupt, packaged deal—he has brought us into dark new realms.

There was a time when Republicans and conservatives more generally insisted that culture was upstream of politics and in many respects more important than politics; that leaders needed to take great care in cultivating and validating standards of decency, honor and integrity; and that a president who destroyed rather than defended cultural norms and high standards would do grave injury to America. But now Republicans are willing to sacrifice soul and culture for the sake of promised policy victories.

Peter Wehner, George Will Changes His Mind—But Stays True to His Convictions

That, I thought, is the most representative quote I can find on this, probably the most important and thoughtful thing I’ll read all day. It articulates far better than I’ve been able to do:

  • Why people like me leave the GOP because we’re conservative, not because we’ve become liberal.
  • How populism and representative government differ, and that populism isn’t “conservative.”
  • “Political leaders today seem to feel that their vocation is to arouse passions, not to temper and deflect and moderate them.”

I highly, highly, recommend it.

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You can read most of my more impromptu stuff at here. It should work in your RSS aggregator, like Feedly, should you want to make a habit of it.

I highly recommend blot.im as a crazy-easy alternative to Twitter (if you’re just looking to get your stuff “out there” and not pick fights).